RIVERA v. THE STATE OF NEW YORK, #2005-030-514, Claim No. 109220, Motion Nos.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
JOSE RIVERA, PRO SE
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
February 18, 2005
See also (multicaptioned
The following papers, numbered 1 to 8, were read and considered on Claimant's
motion [M-68624] to strike defenses and Defendant's cross-motion [CM-69495] for
1,2 Notice of Motion; Affidavit in Support of Motion Striking Defendant's
Defense by Jose Rivera, Claimant, and attachments
3,4 Notice of Cross-Motion; Affirmation by Dewey Lee, Assistant Attorney
5,6 Notice of Opposition to Defendant's Cross-Motion; Affidavit by Jose Rivera,
Claimant, and attachments
7,8 Filed Papers: Claim, Answer
After carefully considering the papers submitted and the applicable law the
motions are disposed of as follows:
Jose Rivera, the Claimant herein, alleges in Claim Number 109220 that
Defendant's agents failed to provide him with adequate and timely medical care
while he was in the custody of the New York State Department of Correctional
Services (hereafter DOCS) at Downstate Correctional Facility (hereafter
Downstate). Specifically, he alleges that commencing in June 2003 he experienced
pain in the groin area and consulted medical personnel, and a swelling in his
right testicle was identified. From July 2003 through most of October 2003, he
indicates that he consulted medical personnel, was referred to a urologist, was
prescribed pain medication and ultimately underwent surgery on or about October
22, 2003 at Mount Vernon Hospital. Thereafter, it is alleged that post-operative
care was undertaken by State medical personnel, who determined initially that
his wound was healing in follow-up examinations, and that all was as would be
expected after the "Hydrocelectomy" he had undergone.
Claimant states that he suffered ". . . persistent pain and swelling in his
right scrotum", and consulted medical personnel who referred him to a
urologist. [Claim, ¶13]. After various visits to medical personnel
throughout November and December 2003 and January 2004, Claimant was again
referred for surgery. Claimant asserts that when the surgeon examined Claimant
on January 20, 2004, he "apologiz[ed] for having made a mistake the first time."
[ibid. ¶22]. The surgery was performed on February 12, 2004.
Claimant alleges that because of the medical treatment he received, he suffers
from erectile dysfunction, as well as mental pain and anguish. He asserts that
between October 23, 2003 and February 12, 2004, there was inordinate delay in
treatment "in rendering a solution to the problem and the relative incompetence
in [follow-up] examinations that should have revealed the extensive problems,
especially where tenseness, inflammation and swelling showed a possible hematoma
buildup in the same area where the original surgery took place . . . "
A Notice of Intention, alleging a date of accrual of December 17, 2003, was
served on the Office of the Attorney General on February 26, 2004, but was
rejected and returned pursuant to Civil Practice Law and Rules §3022.
[ibid. ¶31]. A second unverified Notice of Intention to file a
Claim was returned on or about March 15, 2004. [ibid. ¶ 33].
According to the Affidavit of Service filed with it, the Claim itself was served
upon the Office of the Attorney General on or about April 8, 2004 by certified
mail, return receipt requested.
In its Verified Answer, Defendant asserts two defenses including that the Court
lacks personal and subject matter jurisdiction because of Claimant's failure to
timely serve the claim within ninety (90) days of its accrual. The Claim was
received by the Office of the Attorney General on April 12, 2004.
Defendant's Cross-Motion for Summary Judgment
It is "fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons," including proper diagnosis
and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept
1990), lv denied, 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A Claimant must establish that the medical
care giver either did not possess or did not use reasonable care or best
judgment in applying the knowledge and skill ordinarily possessed by
practitioners in the field. The " ‘claimant must [demonstrate] . . . that
the physician deviated from accepted medical practice and that the alleged
deviation proximately caused his . . . injuries' (Parker v State of New
York, 242 AD2d 785, 786)." Auger v State of New York, 263 AD2d 929,
931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to
liability on the part of the State can be sustained. Hale v State of New
York, 53 AD2d 1025 (4th Dept 1976), lv denied, 40 NY2d 804 (1976). A
medical expert's testimony is necessary to establish, at a minimum, the
standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State's employees can be readily
determined by a fact finder using common knowledge without the necessity of
expert testimony. Coursen v New York Hospital-Cornell Med. Center, 114
AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for
ministerial neglect if its employees fail to comply with an institution's own
administrative procedures and protocols for dispensing medical care to inmates.
Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996).
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . . A motion for summary judgment shall be supported by affidavit, by a
copy of the pleadings and by other available proof, such as depositions and
written admissions. The affidavit shall be by a person having knowledge of the
facts; it shall recite all the material facts; and it shall show that there is
no defense to the cause of action or that the cause of action or defense has no
merit. The motion shall be granted if, upon all the papers and proof submitted
the cause of action or defense shall be established sufficiently to warrant the
court as a matter of law in directing judgment in favor of any party . . . the
motion shall be denied if any party shall show facts sufficient to require a
trial of any issue of fact. If it shall appear that any party other than the
moving party is entitled to a summary judgment, the court may grant such
judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie showing of entitlement to
judgment as a matter of law by proffering sufficient evidence to eliminate any
genuine, material issues of fact, the party in opposition to the motion for
summary judgment must tender evidentiary proof in admissible form to establish
the existence of material issues which require a trial. Winegrad v New York
University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New
York, 49 NY2d 557 (1980).
Attached to Defendant's papers is a sworn affirmation by Dr. Alexis F. Lang, a
Regional Medical Director for DOCS. She reviewed Claimant's medical records, and
renders her opinion as to the medical treatment he was given, including
assessments of how personnel chose to render treatment, and the correlation
between the symptoms presented and the treatment given. She concludes that
there is no clinical support for Claimant's allegations of erectile dysfunction
related to the medical treatment he received, or for his complaints of
excruciating pain. Dr. Lang opines, that claimant's first complaints of
testicular pain on June 23, 2003, resulted in appropriate referrals to a
urologist, and for sonograms. Once the diagnostic evaluations were made,
Claimant was recommended for surgery, which took place on October 23, 2003. She
writes that after surgery, swelling of the scrotum may be present for up to a
month, and that hematoma is a known complication. When it was identified,
additional surgical intervention followed.
Finally, she notes that erectile dysfunction is "not a typical complication
post this procedure. There are a variety of reasons for a 46 year old male who
has been in prison for over 2 years to have [erectile dysfunction]. Experts
believe that psychological factors such as stress, anxiety, guilt, depression
low self-esteem, and fear of sexual failure cause 10 - 20 percent of ED cases."
[Affirmation of Dr. Alexis F. Lang, ¶27].
In opposition to Defendant's cross-motion, the Claimant has filed an Affidavit
that essentially disagrees with the conclusions Dr. Lang draws from the medical
records, and disputes Dr. Lang's reliance on various medical treatises or
articles referred to in her statement. He has appended records from Mount
Vernon Hospital covering the period of his two (2) surgeries, to negate Dr.
Lang's conclusions from the clinical record that he was not suffering the degree
of pain he stated he was suffering.
While it is not the best practice, the use of an attorney's affirmation
appending pertinent deposition testimony, documentary evidence, and a verified
pleading reciting material facts, is not a fatal procedural flaw in a
presentation. Alvarez v Prospect Hospital
, 68 NY2d 320, 325
The Court is satisfied as an initial
matter that the cross-motion is adequately supported.
More importantly, since the Defendant has submitted a sworn statement - albeit
in Memorandum form - of Dr. Alexis Lang indicating her review of Claimant's
medical records and professional opinion regarding the claims of malpractice,
and establishing Defendant's entitlement to judgment as a matter of law, the
burden shift to Claimant to produce evidentiary proof in admissible form
establishing the existence of material questions of fact. Alvarez v Prospect
Hospital, supra at 326-327. Significantly, Claimant has not submitted
his own expert's affidavit to refute the opinion that State medical personnel
did not breach any duty of care owed to Claimant, and that in any event any
omissions were not the proximate cause of his alleged injury. See, ibid.
In this case, only the conclusory statements of the Claimant have been
presented in support of any claim of malpractice. No competent medical evidence
was presented, through a treating physician or an expert witness whose opinion
was based upon the available medical records, to support the allegation of
medical malpractice. There is no medical evidence on any medical issue and thus
no proof that accepted standards of care were not met. The fact that the
surgeon may have been sorry for "making" his patient undergo a second surgery,
if credited, does not establish that somehow the treatment given was below the
acceptable standards of care. Claimant does not rebut the showing by Defendant
to the effect that there was acceptable treatment, or that any treatment or
failure to treat is a proximate cause of the injuries alleged. Based upon
Defendant's presentation, and particularly the uncontradicted medical opinion
presented, the Defendant is entitled to judgment as a matter of law, as there
are no triable issues of fact presented as to the Claimant's allegations of
For all of the foregoing reasons Defendant's cross-motion [CM-69495] for
summary judgment and for dismissal of the within claim is granted, and Claim
Number 109220 is dismissed in its entirety.
Claimant's Motion to Strike Defense
February 18, 2005
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
"A fair reading of the defendant's attorney's
affirmation, the hospital records and the defendant's deposition testimony
compel the conclusion that no material triable issues of fact exist as to the
claims of malpractice asserted against the defendant in the amended complaint as
amplified by the bill of particulars. The fact that defendant's supporting
proof was placed before the court by way of an attorney's affirmation annexing
deposition testimony and other proof, rather than affidavits of fact on personal
knowledge, is not fatal to the motion . . . (citations omitted